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A DWI offense is alleged to have occured when a driver is found to have a blood alcohol level at or above the legal limit. The legal blood alcohol concentration (BAC) level is .08 of one per centum or more by weight of alcohol in the State of New York.

DWI:
D.W.I. is an acronym that refers to the operation of motor vehicles in contravention of alcohol related driving laws. DWI stands for "driving while intoxicated." DUI, or driving under the influence, is sometimes used to refer to the same kind of violation in other states. By statute, a DWI offense occurs when a driver is found to have a blood alcohol level at or above the legal limit. The legal blood alcohol concentration (BAC) level is .08 of one per centum or more by weight of alcohol (or 8 grams of alcohol per 100 deciliters of blood.)

THE POLICE STOP -- A PRELUDE TO ARREST: Driver's stopped (typically late at night or during the early morning hours) for traffic infractions such as speeding, crossing the double yellow line, unsafe lane change, etc., whom an officer reasonably believes has been drinking, are usually run through a series of questions, breath screening, and field tests looking for probable cause to arrest the motorist for DWI.  A breath test is administered later at the police station by a certified chemical breath test eqipment (instrument) operator.

Field Sobriety Tests (FSTs) have gained wide acceptance by law enforcement in recent years as supposedly objective method of acertaining intoxication or impairment. In an effort to standardize FST's, the National Highway Traffic Safety Association("NHTSA") has adopted three field sobriety tests for use by police officers.

1. The One Leg Stand:
   During the test, officers are trained to look for the following validated clues as signs of impairment.
   -Swaying.
   -Putting the foot down.
   -Hopping.
   -Raising the arms from the sides (6" or more).
2. The Walk & Turn:
   The validated clues that officers are trained to look for as signs of intoxication are:
   -Loses balance during instructions (breaking away from the heel-toe stance).
   -Starts walking too soon.
   -Stops while walking.
   .-Misses heel-to-toe while walking (misses by at least one-half inch).
   -Raises arms (at least 6" or more) from side while walking.
   -Steps off the line.
   -Turns improperly.
   -Takes the wrong number of steps.
3. The Horizontal Gaze Nystagmus (HGN):
   The clues recognized by NHTSA as validated indicators of horizontal gaze nystagmus:
   -Lack of smooth pursuit.
   -Distinct nystagmus maximum  deviation.
   -Onset of nystagmus prior to 45 degrees.
   A point is added for each indicia demonstrated by the suspect. As there are six clues (three for each eye) of HGN, a score of 4 is unsatisfactory.

BREATH TESTING:
If a driver fails the FSTs, he or she is usually asked to breathe into a preliminary screening device commonly known as an alco-sensor. While this test is not admissible at trial, it is used as part of the "probable cause" to arrest the driver.

If a motorist is arrested, they are taken to the police station for further chemical breath testing.

Chemical breath alcohol testing was developed as an easily administered alternative to more invasive kinds of tests; for example, a blood test or a urine test.  The chemical test is given by the use of an intoxilyzer, breathalyzer, or sometimes a blood or urine test.  A driver who is found to have a BAC of .08 or higher is issued an appearance ticket for a future court date or is held in custody until they can appear before a judge for bail to be set, and are then directed to return to court at a future date for their Arraignment (see below).

1. Unlike most foods, alcohol requires no digestion by the human body. About 80% of consumed alcohol is absorbed unchanged directly into the bloodstream, primarily through the small intestine. The other 20% is absorbed directly through the mouth, throat and stomach walls. The most significant effect on how the body absorbs alcohol is the quantity of food eaten with or just prior to the consumption of alcohol. A large amount of food in the stomach slows the absorption of alcohol into the body. Conversely, if no food is present in the stomach, the rate of absorption is much faster. Complete absorption of one alcoholic beverage takes about 50 minutes after being drank.
2. After being absorbed, alcohol is distributed through the human body by the bloodstream. Blood carries alcohol molecules to the liver, to the right side of the heart, to the lungs, and then to the left side of the heart where it is distributed through the entire body, including the brain. The concentration of alcohol is directly proportional to the body water content of each person. This means that alcohol concentration will vary according to a person’s body weight. As a general rule, the heavier a person, the greater the amount of alcohol that must be consumed to reach a specific alcohol concentration in the body.

   Blood/Alcohol Calculator Gender: Male Female   Weight (lbs):   Drink Type: 12oz Beer (3.2% Alc) 12oz Beer (5% Alc) 12oz Beer (6% Alc) 8oz Wine (8% Alc) 8oz Wine (10% Alc) 1oz Shot (96 Proof)   Total Drinks: 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25   Time Since First Drink: 30 Minutes 60 Minutes 90 Minutes 2 Hours 3 Hours 4 Hours 5 Hours 6 Hours 7 Hours 8 Hours   Results:   Disclaimer: This is only a statistical average and should NOT be used to determine whether you should drive.

3. Alcohol is eliminated by the body in three ways: metabolism, excretion and evaporation. The rate at which these three occur varies from person to person. Roughly 80% of alcohol is eliminated through metabolism in which the liver breaks down the complex alcohol to its basic components of oxygen, hydrogen and carbon. These are then eliminated by the body. Despite the popular belief that coffee will "sober up" someone, it does not. Only time will remove alcohol from the human body. A good rule of thumb is to allow one hour for each drink—characterized as one 12-ounce beer, one glass of wine or one "shot" of hard liquor—consumed.
4. The blood: breath ratio of 2100:1 has been widely accepted for use in computing blood alcohol concentration from breath. This means that 2,100 milliliters of deep lung air will contain the same amount of alcohol as one milliliter of blood.
5. Therefore, a Breath Alcohol Concentration (BAC) is claimed to be as accurate as a blood test or a Blood Alcohol Concentration. A breath alcohol analysis expresses alcohol concentration by indicating a weight by volume relationship. Specifically, the instrument found a weight of alcohol expressed in grams per 210 liters of breath from the person who was tested.

Text credit(s): Gerstenzang CMI, Inc.; Peter Gerstenzang is a renowned co-author of Handling the DWI Case in New York.

THE ARRAIGNMENT:
The first appearance in court is called the "arraignment." This occurs before a Judge wherein an indictment or Information is read to the defendant (or said reading is "waived" by the defense) and the defendant then pleads guilty or not guilty in misdemeanor cases. A copy of the accusatory instrument(s) and accompanying documents are supplied to the defendant or their counsel. 

If the plea is not guilty, the case is adjourned to a future date. If the defendant pleads guilty as charged (subject to a "rap sheet" in the possession of the court to confirm nothing outstanding to reveal the defendant’s prior convictions), a sentencing date is set. Neither the arresting police officer, victim(s) nor witnesses need to be present for an arraignment. The arraignment informs the defendant of the charges and appoints an attorney if they qualify as indigent. If not indigent, they are directed to retain counsel of their choosing and to return to court usually in one to two weeks.  If the defendant is in custody, a bail may be set or the defendant may be released on their own recognizance (demonstrates their responsible enough to return to court without bail being set). If the defendant is out of jail, a bail may still be set (the defendant may be taken into custody until the bail has been posted), or they may remain out of custody having been released on their own recognizance (ROR’d).

The defendant may also be placed under certain conditions at this time, such as having to undergo alcohol or drug testing. Many courts in New York direct the defendant in a DWI case to be evaluated by an organization known as "TASC," who will in turn supply the court with a report containing TASC’s evaluation of the defendant’s propensity to abuse alcohol with recommendations for treatment.

Under a procedure in New York DWI cases known as the "pre-conviction suspension," licenses are turned into the court at the arraignment or their driving "privilege" is suspended before a defendant is convicted. A defendant may qualify for a "hardship privilege," i.e., a very limited license for use between home and work and return. Note - this suspension time does not accrue to the penalty suspension which follows a conviction. The full punitive license suspension or revocation follows conviction for an alcohol-related offense.

PRELIMINARY HEARINGS:
A common DWI preliminary hearing is a proceeding prior to trial to determine if probable cause existed to believe a crime was been committed and that the defendant committed it. This hearing is held before the judge of the jurisdiction in which the crime allegedly occurred. Less evidence, and therefore fewer witnesses, is needed than at trial. A victim or other witness may be subpoenaed for the hearing or the People may rely on a police officer to testify.

Examples of Common D.W.I. Preliminary Hearings:
Suppression: Article 710 of CPL (710.20) 

• Huntley: Motion to suppress involuntarily made statement (can challenge voluntariness even if he denies making statement.)
  
  Sandoval: Hearing to determine the extent to which the People may cross-examine a defendant based upon his criminal convictions and other bad acts.
  
  Ventimiglia: Hearing to determine the extent to which the People may prove a defendant’s criminal convictions and other bad acts on its direct case.
  
  Dunaway: Motion to suppress evidence obtained post arrest alleging the evidence constitutes "fruit of the poisonous tree", having been obtained as the result of an illegal arrest based on less than probable cause. (Could be statements of defendant, identification procedure, or tangible property obtained a s a result of a search and seizure.)
  
  Mapp: (*also a probable cause hearing) suppress tangible evidence, search done in violation of defendant’s civil rights.
  
  Wade: Motion to suppress identification testimony (CPL 710.20(6), e.gs: suggestive line-up, show-up and photo array).
  
  Darden: Where the basis for the probable cause was information provided by a confidential informant, the defense can request a Darden hearing to determine the existence and reliability of the informant. (People can request an in camera examination to protect identity of informant.)

Testimony is usually recorded by a court reporter. Once the People have presented its evidence, the Judge must either find that probable cause existed or dismiss the charges for lack of probable cause. If probable cause is found, the defendant may be allowed to put on an offer of proof to show it did not exist, but this usually occurs only if the Judge feels the defendant's evidence would rebut the finding of probable cause.

If probable cause is found, the proceedings against the defendant will continue and a trial will be usually be scheduled for a future date.

TRIAL:
The People have the burden of proving each and every element of the charge(s) at trial beyond a reasonable doubt.  All defendants have a statutory and consititutional right to a trial. A trial can be held before a jury or judge ("bench" trial).  Juries are made up of either 6 (misdemeanors) or 12 (felonies) people as well as one or two alternates, who are selected immediately prior to deliberations. Alternates are used if a juror is unable to complete the trial. 

A defendant may waive a trial by a jury of one's peers and have his case tried by a judge acting as the finder of fact. While the procedure is basically the same in both bench and jury trials, presenting a case before a jury carries a few extra steps. The Commissioner of Jurors or the local court justice will send a panel of potential jurors to the courtroom. Potential jurors are questioned by the court or the attorneys about their employment, prior jury experience, knowledge of the case, possible conflicts, or other relevant issues. This is known as voir dire. The attorneys may submit to the judge specific questions they want asked which help evaluate whether or not a certain juror is qualified to hear this particular type of case.  The judge decides which questions are appropriate to ask the jury panel. When voir dire is finished, the panel is excused for a period of time while the attorneys exercise their "challenges" of the jury panel, reducing the number to 6 (misdemeanors) or 12 (felonies) plus the alternates. 

Sometime prior to trial (either before jury selection or after jury selection but prior to opening statements), the judge will hear various pre-trial motions. Pre-trial motions, which may be filed by either party, address such issues as the admissibility of evidence and the voluntariness of the defendant's statement. 

After the motions are heard and ruled upon (or the decision "reserved"), both attorneys may give an opening statement, which is an outline of what they believe the evidence will show. The People present its case-in-chief first through the testimony of witnesses as their direct examination and the admission of physical evidence. After the prosecutor has questioned each witness, the defense attorney may question that same witness during its cross-examination.

After the cross-examination, the prosecutor may again question the witness (redirect examination).

When the People have questioned all its witnesses and admitted all its evidence, the People rest. The defense may then present their case-in-chief, proceeding in the same manner, except that the direct examination is by the defense attorney while the cross examination is done by the prosecutor. If the defense chooses to put on witnesses, the People may call rebuttal witnesses after the defense has rested its case.

After all testimony has been received, the Defense presents its closing argument first followed by the People’s closing argument.  After closing arguments, the judge will read the jury instructions (that is the law the jury must apply in deciding the case) which have been agreed upon out of the presence of the jury. The alternates are then chosen and excused, and the jury retires to deliberate until they have reached a verdict.

The jury may find the defendant not guilty, guilty, or be unable to reach a verdict at all (since verdicts of guilty or not guilty must be unanimous.)  Each charge or "count" must be decided independently.  A defendant may be found guilty of some counts while not guilty on others.  Still others may result in a hung jury because the jury was unable to reach a unanimous verdict. If the defendant is found guilty, the judge will set a date for sentencing.  If found "not guilty," the charge(s) are dismissed and the defendant is released from custody or conditions of release.  A hung jury results in the judge setting a date for a new trial.

PROBATION PRE-SENTENCE REPORT:
A defendant who pleads guilty or is convicted at trial of a misdemeanor or felony offense typically is directed to be evaluated by the Department of Probation so they may prepare a pre-sentence report (PSR) for the court. The evaluating probation officer does a detailed background study of the defendant and sometimes contacts relatives or other interested parties in order to make a recommendation to the court concerning the sentence and/or whether a defendant is a good candidate for probation. The probation report is in writing and is supplied to the court prior to sentencing.

SENTENCING:
Should a defendant be convicted of a crime, the judge will impose a sentence at the time of a plea, the conclusion of the trial, or at a later date.  Depending upon the offense(s), the defendant may be sentenced to a fine and/or jail, and/or be placed upon probation.  Probation does permit the partial imposition of jail time as a term and condition of probation, sometimes referred to as "Shock Probation."  Restitution and/or fines may also be imposed during sentencing as a term of probation. New York Penal Laws set minimum and maximum penalties.  The judge takes into consideration mitigating and aggravating factors in determining the sentence to be imposed.  

In some case, a defendant may be sentenced to a conditional discharge ("CD") which releases the defendant upon certain conditions.  In DWI case, it is not uncommon for such terms and conditions to include participation in some form of alcohol treatment program.  Should the defendant later violate any of the imposed conditions, the court may find, after a hearing, that the defendant violated his or her probation and revoke same.  In that event, the defendant might be sentenced to prison.